Barely Legally

Confessions of a Moot Court Bailiff

Dangerous In Any IV

Apparently, there’s a shortage of thiopental sodium in America: the anesthetic is used in lethal injections, but the sole American supplier isn’t making enough to keep up with demands. This made for some droll late-night comic fodder about the dangers of using expired poison in your lethal injections, but there are some concerns.

Given the lack of domestic options for purchasing thiopental sodium in America, some states have started importing it from Europe. Yesterday, in response to the Wall Street Journal, the FDA said they have no authority to regulate “substances imported or used for the purpose of state-authorized lethal injection…”, because the FDA’s role is to protect the public health, something which lethal injection drugs are pretty clearly not meant to do.

The FDA’s punt on the efficacy of lethal injection drugs leaves an opening for opponents of the death penalty. As pointed out by the WSJ Law Blog:

But the [FDA] did have one thing to say that could provide grist for attorneys representing death-row inmates; some advocates have claimed that it is unconstitutional to import thiopental, because of the possibility that foreign-made thiopental will not be sufficiently potent and effective, creating a risk that inmates will suffer a severely painful death.

This is an allusion to the question raised in Baze v. Reese; Kentucky death row inmates claimed that lethal injections could be excruciatingly painful, which would be cruel and unusual punishment, which one of those amendment thingies prohibits.